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Sex offender’s home ownership doesn’t impact residency restriction

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A convicted sex offender who argued that a probation condition prohibiting him from living within 1,000 feet of a school is unduly restrictive on his property interest in a home he owns lost his appeal before the Indiana Court of Appeals.

Mark Gaither committed child molesting in 1995 and 1996 but wasn’t convicted until August 2008. As part of his probation and parole, he isn’t allowed to live within 1,000 feet of school property. He owns a home in Muncie that is within 1,000 feet of a middle school, and he wants to live there. The statute requiring that sex offenders on probation/parole be prohibited from living within 1,000 feet of a school was enacted in 1999.

Gaither claims because he committed his offenses before the statutes were enacted, he isn’t subject to them and the residency restriction placed on him violates the ex post facto clause of the Indiana Constitution.

Even though his probation has since expired, the COA ruled on the case because of public importance.

Gaither tried to distinguish his case from Hevner v. State, 919 N.E.2d 109 (Ind. 2010), in which the Indiana justices ruled that Hevner, who had been convicted of a sex offense, was subject to conditions of probation, including living within 1,000 feet of a school. Gaither claimed that because he owned his home before he committed the child molesting, he should be allowed to stay in it.

The justices “made no distinction between ownership and mere residency, and the fact that an offender owns a home in which he is not allowed to reside during his term of probation or parole is immaterial in determining whether a condition of probation or parole is related to an offender’s rehabilitation, while protecting the public,” wrote Judge John Baker.

The appellate court ruled in Mark Gaither v. Indiana Dept. of Correction, et al.,18A02-1111-MI-1073, that Indiana courts have held that prohibiting a sex offender from living within 1,000 feet of a school as a condition of probation is reasonably related to the offender’s rehabilitation and is permissible.

 

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  • SOR
    I read and I have the article that states that the Indiana Supreme Court ruled unaniousmly the sex offender registration is punitive (puinishment) therefore it is doublr jeopardy!
  • Rehab
    If someone is convicted of possession of child porn but never did anything else or caused harm to a child or any other person in their 40+ years, what type of rehabiltation do they need? Should they have their eyes poked out?

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  1. Hail to our Constitutional Law Expert in the Executive Office! “What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

  2. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  3. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  4. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  5. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

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